Maintaining Status

Allowable Activities

Once an alien enters the U.S. in a nonimmigrant status, he must continue to carry on any specific activities for which he obtained the status (i.e., full-time study, approved work, etc.), avoid any unauthorized activities (especially work), avoid becoming subject to any deportability grounds, and notify USCIS and/or his school or exchange program in writing within 10 days of any change of address in the U.S. (using Form AR-11 or AR-11SR, or by filing one of many forms concerning an extension or change of status). Otherwise, he becomes deportable and ineligible to extend or change that nonimmigrant stay. There may be other consequences, such as becoming ineligible to adjust status to permanent residence within the U.S. even if he becomes otherwise eligible.

Departure or Extension/Change

At the time of departure from the U.S., normally the visitor should surrender any I-94 or I-94W departure card to check-in representatives of the airline or other carrier, who passes it on to DHS for entry into a database where departure can be matched with the entry card to reflect that the visitor in fact did depart. Land travelers often find no one to collect the I-94. Anyone who failed to surrender the I-94 effectively when departing must send it by mail to a CBP address with evidence of actual departure. Those departing to Mexico or Canada for less than 30 days should in fact hold on to their I-94 card and present and keep it upon return.

Failure to depart by the time shown on the I-94 card can have huge consequences:

  1. Immediate deportability.
  2. Inability to extend the stay or change to another status within the U.S.
  3. Possible ineligibility to adjust status to permanent residence.
  4. Immediate, automatic cancellation of any visa used to enter (even without any notation canceling it), and requirement to obtain any subsequent visa — ever — at the U.S. consulate in the alien’s country of nationality. There are many technical exceptions to this cancellation rule, and someone potentially subject to it should consult a U.S. immigration lawyer before seeking new entry.
  5. If the “overstay” continues for 180 days/one year, subjection to a 3/10-year bar on any reentry following the next departure from the U.S. This brutal consequence also has many exceptions, and a U.S. immigration lawyer should be consulted.

It should be apparent from the above list that “overstay” is to be avoided, and anyone facing a deadline on departure should consult a U.S. immigration lawyer. It is conceivable that an unmatched entry card or other USCIS or consular encounter can lead to the person being added to a “lookout” list in the U.S. government’s increasingly interrelated databases. One should be prepared, when seeking admission, to prove the timeliness of all prior departures, especially any departures during which the I-94 was not surrendered.

Most nonimmigrants may seek to extend their stay in the same visa classification or to change status (with an extension of stay) in a new visa classification. This can be done even if the visa used to enter has expired. As long as the application is received by the USCIS by or before the date of the existing stay’s expiration, the alien may remain in the U.S. to await the decision, but in most cases the alien may not start any new employment requested until approval of the new filing is approved. The papers are almost always submitted to a USCIS “service center” by mail. The type of papers to be submitted to USCIS vary depending on the visa classification sought and whether the person is the “principal alien” or an accompanying “derivative.” Usually the USCIS form involved is either I-129 or I-539. Normally, electronic filing with USCIS is not advisable, but it can be reassuring to obtain electronic receipt if the filing must take place at the last minute.

While a 6-month extension of a tourist’s stay can be simple enough to prepare, even those applications can have pitfalls for the unwary, and any work-authorizing status should be handled by a competent immigration attorney.

Avoiding Deportability

Apart from observing the limitations on the duration of stay and allowable activities, a nonimmigrant must avoid becoming subject to one of the many “deportability grounds” that are akin to, but still different from, the inadmissibility grounds. Especially since an alien can be deportable for having been inadmissible when (mistakenly) admitted, both sets of grounds are almost always potentially at issue. The most common ground for nonimmigrants, other than overstay, unauthorized employment and failure to maintain the activities necessary for the classification, is convictions of one or more crimes. Anyone who may have become subject to deportability, or who is given notice to Appear before an Immigration Court, should promptly consult an immigration lawyer.

Special Registration

Nationals from a designated list of countries, along with other people individually selected by immigration inspectors, must now comply with “special registration” procedures during inspection. Those countries include Iran, Iraq, Libya, Sudan, Syria, Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, Yemen, Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan, and Kuwait. The regulations require nonimmigrant nationals of these countries to provide notifications to immigration authorities of changes of address, employment, or school (to the extent not reflected in a SEVIS entry by the school) on form AR-11SR. Initial requirements for thirty-day and one-year personal appearances at local immigration offices have been eliminated, but individuals still may be required to appear as instructed. Special registrants are required to report in person to an immigration officer at one among a limited list of designated ports when departing the U.S. For those registered during inspection, a package of detailed information about compliance is provided and should be carefully reviewed, and this package includes the designated ports for departure that all special registrants must use.

How We Can Help

We assist clients in evaluating and comparing the seemingly innumerable visa classifications for which they might be qualified, whether a visa will be required (and if not required whether it should be obtained anyway), where and how to apply, and how best to accomplish entry. We advise clients about inadmissibility grounds that may apply and assist in waiver applications and appeals from denials of them. We assist clients in seeking review of visa denials. We represent clients in removal proceedings, where available if they are found inadmissible. We help clients seek remedies even when they have been removed at the border without a hearing. We help clients maintain their status and extend and change it to meet new goals. We assist clients with determining whether they are subject to special registration and advise them on compliance issues. We also plan and take appropriate steps toward permanent residence, coordinating such plans and steps with the temporary status.

Consult with us for assistance with a case.

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